Andrew Brown, journalist and commentator, suggests German laws allowing assisted suicide rest on the principle that individual autonomy is an inalienable right – a metaphysical judgment based on the constitution.
The highest court in Germany has rejected a law that banned professionally assisted suicide.
Suicide itself is a constitutionally protected right in Germany. The Federal Constitutional Court, in making its decision, said: “This right is guaranteed in all stages of a person’s existence.”
The court held that suicide need not be explained or justified but was an inalienable right. “The individual’s decision to end their own life, based on how they personally define quality of life and a meaningful existence, [cannot be judged] on the basis of general values, religious dogmas, societal norms for dealing with life and death, or considerations of objective rationality . . . their decision must, in principle, be respected by state and society as an act of autonomous self-determination.”
This is a very clear statement of the pure liberal or even existentialist position. It says that the value and indeed the purpose of a life can only be determined by the person who lives it; and that their judgment is final and may not be appealed.
There is no place for God’s purposes, or his representatives, in this story. Most Europeans today would accept it without much thought as obviously true – and then reject it emotionally as horribly false if they had to live it out.
Hardly anyone who has loved someone who has committed suicide feels the death was not really their business. No: they rage and mourn because in all but a very few cases they believe the dead person was wrong and that life did in fact have more to offer them.
However, the court is logical. It reasons from first principles. One effect of this is that it makes clear that while a constitution can be secular, it cannot be entirely neutral. It has to take a view on the purposes of human life, and the German constitution takes the view that the highest purpose is self-actualisation and that this includes the right to end it all.
Having first established an absolute right to suicide, the court went on to ask whether this implies the right of other people to help you. That was the legal point at issue: an earlier law had forbidden assisted suicide if the assisting organisation made a profit from it.
The constitutional court held that this restriction was unconstitutional, because it meant that in practice the right to suicide could only very seldom be exercised. In many situations, it said, people could not commit suicide without help and that meant they were dependent on doctors willing at least “to provide assistance at least in the form of prescribing the substances necessary to commit suicide”.
And few German doctors will do this: “Willingness on the part of a physician can only be expected in exceptional cases. To date, physicians have shown little willingness to provide suicide assistance and cannot be obligated to do so,” the court judgment said.
So, if doctors will not do it, private enterprise must be allowed to step in. It is easy to see how the court has reasoned itself here: if you have a right to act in some way, other people surely have a right to help you do so, especially if you cannot exercise your right without their help.
But it is just as easy to see how this straight clear path has led them into the middle of a swamp.
The purpose of the law that was struck down had been to stop anyone from making a profit from the provision of assisted suicide. For once there is a profit to be made, there is a reason to encourage the profitable behaviour. And it is in the light of this kind of consideration that the belief in individual autonomy starts to look questionable.
The judges are thoughtful and humane. They have considered this obvious dangers. Society, they say, has a legitimate interest in limiting access to assisted suicide: it “could become recognised as a normal way of ending life, especially for elderly and ill persons, which might create social expectations and pressure endangering personal autonomy . . . This is especially true where healthcare and long-term care services struggle to meet demands; these developments may prompt individuals to fear a loss of self-determination and could thus encourage a decision to commit suicide.”
But in the end, they still believe that the cases where individual autonomy is clear are more important. Of course, this is a judgment whose reasoning is based ultimately on faith. You cannot prove that autonomy is the highest good; only that the German constitution assumes it is.
Which goes to show that even when a society thinks it has outgrown religious belief, it still makes metaphysical judgments on the basis of authoritative texts, whether these are called scriptures or constitutions.